International law and its relation to domestic law

Treaties ratified by parliament are part of national law. (Article 11(2) of the revised Romanian Constitution, 29 October 2003) If Romania plans to become a party to a treaty that contains provisions that are contrary to its Constitution, then it can be ratified only after the Constitution is amended. (Article 11(3) of the Constitution) Constitutional provisions concerning citizens' rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, as well as with other covenants and treaties to which Romania is a party. (Article 20(1) of the Constitution) Where any inconsistencies exist between national laws and the human-rights covenants and treaties to which Romania is a party, the international regulations shall take precedence unless the Constitution or national laws contain more-favourable provisions. (Article 20(2) of the Constitution)

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International law and its relation to domestic law

Treaties ratified by parliament are part of national law. (Article 11(2) of the revised Romanian Constitution, 29 October 2003) If Romania plans to become a party to a treaty that contains provisions that are contrary to its Constitution, then it can be ratified only after the Constitution is amended. (Article 11(3) of the Constitution) Constitutional provisions concerning citizens' rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, as well as with other covenants and treaties to which Romania is a party. (Article 20(1) of the Constitution) Where any inconsistencies exist between national laws and the human-rights covenants and treaties to which Romania is a party, the international regulations shall take precedence unless the Constitution or national laws contain more-favourable provisions. (Article 20(2) of the Constitution)

FREEDOM OF ASSEMBLY

Legal framework

Public meetings, processions, demonstrations, and other kinds of assemblies shall be held freely and peacefully, absent any weapons whatsoever. (Article 36 of the Constitution) There is a special law that regulates freedom of assembly. (Law No. 60/1999, 25 September 1991 (with amendments of 15 March 2004), hereinafter referred to as the Law; Law No. 208/2004, 4 June 2004) There is no secondary legislation regulating freedom of assembly.

Types of assemblies defined and protected in domestic law

The Law covers meetings, protests, manifestations, processions, and any other public assemblies. Assemblies may be held in one place, or they may move in a procession.

Possible limitations/restrictions/conditions, including notice requirements

The exercise of certain rights and freedoms may only be restricted by law and only if necessary for the defence of national security; the protection of public order, health, or morals; the protection of citizens’ rights and freedoms; conducting a criminal investigation; or to prevent the consequences of a natural disaster or other catastrophe. Such restriction shall be ordered only if necessary in a democratic society. The measures taken shall be proportional to the situation requiring such measures, and they shall be applied without discrimination and without infringing upon the existence of such rights or freedoms. (Article 49 of the Constitution)

Public assemblies are forbidden if they have any of the following purposes:

- The dissemination of ideas of a totalitarian, fascist, communist, or racist nature; the dissemination of the ideology of any terrorist organization; defamation of the country or its citizens; incitement of national or religious hatred; support for discrimination; or public violence or obscene acts that are contrary to morals;

- The organization of a coup d’etat or any other actions against national security;

- A violation of public order, safety, or morality; the rights and freedoms of citizens; or endangerment to public health. (Article 9 of the Law)

Public assemblies may be organized upon advance notification. (Article 1(2) of the Law) No notification is needed in the following cases: assemblies for cultural and artistic purposes, sporting events, religious events, commemorative assemblies, assemblies organized to mark official visits, or assemblies organized inside buildings. If, however, the organizers of such an assembly have evidence that violent acts might be committed during the assembly, they are obliged to ask in advance for support from mayors, local gendarmerie units, and the local police.

Written notification must be submitted to the mayor of the locality where an assembly is to take place. Organizers must submit a notification at least three days prior to the planned assembly. The notification shall contain the name under which the organizing group is known; the purpose of the assembly; its date, time, duration, route, and approximate number of participants; the names of persons responsible for organizational matters; and the services required from the local council, gendarmerie, and police. (Chapter II of the Law)

Place, route, and time of assemblies

Assemblies may be held on private or public property, including public roads, with the exception of highways. Assemblies may not be continued after 23:00. It is prohibited to organize public assemblies in the immediate vicinity of railway stations, ports, airports, subway stations, hospitals, establishments used for military purposes or establishments where a number of highly dangerous machines are concentrated. It is also prohibited to have two simultaneous assemblies in the same place or following the same route. (Article 5 of the Law)

Power to ban assemblies

Every local council has a committee for the authorization of assemblies. (Organized in accordance with Article 8 of the Law) It consists of the mayor, the secretary of the locality, and representatives of the gendarmerie or police. In well-justified cases, with the agreement of the organizers, the committee may modify certain elements of the notification. The committee may ban an assembly if it conflicts with the provisions of Article 9 of the Law (see above in “Possible limitations/restrictions/conditions”).

In accordance with the committee’s suggestion, a mayor may also prohibit public assemblies in the following cases:

- Upon receiving information from specialized institutions that an assembly would violate the provisions of the Law; (Namely, Article 2 of the Law, in accordance with which public assemblies must be conducted in a peaceful and civilized manner, ensuring the protection of participants and the environment, without disturbing the normal use of public roads and transportation,  the functioning of public or private institutions, schools, cultural and health institutions; or generating disturbances that would jeopardize public health and order; the safety, integrity, or life of citizens; or public or private property) or

- When the location or route of a planned assembly will interfere with road works.

A mayor must communicate a reasoned decision of refusal to the organizer(s) of an assembly in writing within 48 hours from the submission of the notification. This decision can be appealed to a court. (Article 10 of the Law)

Requirements for organizers; their rights and duties (including liability and penalties)

There are no quantitative requirements with regard to organizers of an assembly. The Law does not stipulate any qualitative requirements with regard to organizers, nor does it have any provisions concerning children, stateless persons, refugees, or foreigners.

Organizers of an assembly have the following obligations:

- To register notification of a public assembly with the competent gendarmerie unit at least 48 hours before an assembly is to take place;

- To appoint a responsible person(s) in charge of leading an assembly;

- To ensure their own security by wearing distinctive markings that have been created in co-operation with the commander of the competent gendarmerie unit;

- To set territorial limits for the assembly by installing distinctive and visible signs; when an assembly is in motion, to take appropriate measures to limit a portion of the road occupied by the assembly;

- To pay, in advance, for services rendered, upon their request, by local councils;

- To establish the route of the assembly and to take appropriate measures to make sure that the area allocated for the assembly is occupied shortly before the beginning of the assembly and vacated immediately after the end of it;

- To take appropriate measures to prohibit the participation of people in possession of alcoholic beverages or who are under the influence of alcohol;

- To take measures to remove participants whose behaviour violates the rules of public order, and to report such participants to the police if they do not comply with their requests;

- To stop a public assembly immediately in case of breach of Article 2 of the Law; in this case, the assembly may be continued after public order is restored;

- To prohibit the participation of persons holding weapons of any kind, explosives, substances causing paralysis, or any other objects that can be used for violent acts or to disturb the normal conduct of an assembly. (Article 12 of the Law)

The following acts, if committed by the organizer of an assembly or a participant, are punishable by an administrative fine or further penal sanctions:

- Organizing a public assembly without advance notification, without registration, or if an assembly has been prohibited;

- Non-compliance with the time constraints placed on an assembly or with the route or the place and area allocated for the assembly;

- Failure to suspend an assembly if the organizers notice that any of the actions stipulated in Article 2 of the Law are taking place;

- Participation in an undeclared or prohibited public assembly, followed by refusal to leave the location of the assembly upon the request of the competent authorities;

- Instigation or initiation of, or recourse to, violence or other such actions with the intent to demobilize a procession or interrupt an assembly;

- Refusal to immediately leave an assembly if such a measure was ordered by the organizers;

- Organization of, or participation in, a counter-assembly at the same time and in the same place as an authorized assembly regardless of the manner of expression;

- Selling alcoholic beverages or bringing them into the locations allocated for the public assembly;

- Refusal to leave an assembly immediately upon the request of the authorities. (Article 26 of the Law)

Requirements for participants; their rights and duties (including liability and penalties)

There are no quantitative requirements with regard to assembly participants. Assembly organizers must provide information on the approximate number of participants. (Article 7 of the Law) The Law does not establish any qualitative requirements with regard to participants, nor does it have any provisions concerning children, stateless persons, refugees, or foreigners.

Assembly participants have the following obligations:

- To respect the instructions of the organizers, their representatives, or public authorities;

- To refrain from any actions that would prevent the normal conduct of an assembly and from encouraging such actions by any means;

- Not to be in possession of dangerous objects during an assembly;

- To leave immediately when asked to do so by the organizers, their representatives, or public authorities; and

- Not to participate in a public assembly under the influence of alcohol; not to drink or distribute alcohol or drugs at an assembly. (Article 13 of the Law)

The following are punishable offences:

- Possession, by a participant, of any weapons, explosives, substances causing paralysis, or any other object that can be used in a violent manner (imprisonment from three months to two years);

- Violently opposing the organizers, their representatives, or the authorities, or preventing these persons from exercising their duties of ensuring the maintenance of order at a public assembly (imprisonment from three months to two years or a criminal fine). (Article 28(1) of the Law)

(For other possible offences, see “Requirements for participants; their rights and duties”).

State and police powers and responsibilities (including liability and penalties)

The chief of police or of the gendarmerie, or the persons designated by them, are obliged to ensure the safety of the participants. Together with the organizers, they have to take measures for the orderly conduct of an authorized public assembly. (Chapter IV of the Law)

If a public assembly becomes unruly or violent, the police and/or gendarmerie shall intervene to restore order or to prevent actions that jeopardize the safety of citizens or that may lead to the destruction of public or private property. In such cases, the police and gendarmerie will intervene by using the technical means available, within the limits of the law, and in accordance with the circumstances. (Chapter IV of the Law)

The use of force will be ordered by the prefect or his designated representative at the request of the police or gendarmerie, or, in cases of imminent danger, force may be used without the authorization of the prefect. (The procedure for the use of force is detailed in Articles 20-23 of the Law) Force will no longer be used once the area has been cleared, the participants have dispersed, and public order has been restored.

The Criminal Code and the Code of Criminal Procedure contain special provisions on the responsibility of the police or gendarmerie in case of excessive use of force.

Appeal rights

A decision to ban an assembly may be appealed to a court. (In accordance with Law 29/1990 regarding administrative procedures)

Analysis was written with the assistance of the Permanent Mission of Romania to the OSCE, which completed the ODIHR questionnaire.

Posted in October 2006

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